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A BILL TO BE ENTITLED
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AN ACT
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relating to protections provided by the Department of Agriculture |
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for certain consumers; providing penalties. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Section 13.001(a)(3), Agriculture Code, is |
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amended to read as follows: |
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(3) "Pump" means a [gasoline, kerosene, or diesel fuel
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measuring or dispensing] device used to measure or dispense any |
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motor fuel, as defined by Section 162.001, Tax Code. |
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SECTION 2. Section 13.007(a), Agriculture Code, is amended |
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to read as follows: |
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(a) A person who violates this chapter or a rule adopted |
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under this chapter is liable to the state for a civil penalty not to |
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exceed $10,000 [$500] for each violation. Each day a violation |
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continues may be considered a separate violation for purposes of a |
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civil penalty assessment. |
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SECTION 3. Section 13.039, Agriculture Code, is amended to |
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read as follows: |
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Sec. 13.039. TESTING OF PACKAGE BY INSPECTOR [SEALER]. (a) |
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An inspector [A sealer] appointed under Subchapter C of this |
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chapter shall from time to time weigh or measure a package, or an |
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amount of any commodity, that is kept or offered for sale, sold, or |
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in the process of delivery, in order to determine: |
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(1) if the commodity is of the amount or quantity |
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represented; or |
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(2) if the commodity is being offered for sale or sold |
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in accordance with law. |
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(b) If an inspector [a sealer] finds that a package or any |
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lot of a commodity contains less of the commodity than the amount |
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represented, the inspector [sealer] may seize the package or the |
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commodity as evidence. |
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(c) A person commits an offense if the person or the |
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person's employee or agent refuses to exhibit a commodity being |
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sold or offered for sale at a given weight or quantity, or |
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ordinarily sold in that manner, to an inspector [a sealer] for |
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testing and proving as to quantity. |
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SECTION 4. Sections 13.101(a) and (d), Agriculture Code, |
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are amended to read as follows: |
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(a) At least once every four years, or more often as |
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required by the department, a weight or measure shall be inspected |
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and tested for correctness by an inspector [a sealer] if it: |
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(1) is kept for sale, sold, or used by a proprietor, |
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agent, lessee, or employee in proving the weight or measure, |
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including the size, quantity, extent, or area, of any item; or |
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(2) is purchased, offered, or submitted by a |
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proprietor, agent, lessee, or employee for sale, hire, or award. |
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(d) Unless the department requires an additional |
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inspection, a weight or measure that is inspected and found correct |
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by an inspector [a sealer] may be kept for use, used, kept or |
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offered for sale, or sold without further testing. |
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SECTION 5. Section 13.1011(a), Agriculture Code, is amended |
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to read as follows: |
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(a) A person who operates a pump, scale, or bulk or |
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liquefied petroleum gas metering device for a commercial |
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transaction shall [must] register annually with the department. |
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SECTION 6. Section 13.1012(e), Agriculture Code, is amended |
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to read as follows: |
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(e) The department may conduct an inspection of an |
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applicant's or registrant's: |
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(1) facilities; |
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(2) inspecting and testing equipment and procedures; |
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(3) repair and calibration equipment, records, and |
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procedures; and |
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(4) transportation equipment. |
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SECTION 7. Section 13.102, Agriculture Code, is amended to |
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read as follows: |
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Sec. 13.102. REGISTRATION [INSPECTION SEAL] REQUIRED |
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[PRIOR TO SALE]. (a) A person shall register a weight or measure |
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with the department if the person uses the weight or measure in: |
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(1) buying or selling a commodity or item; |
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(2) computing a charge for services rendered on the |
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basis of weight or measure; or |
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(3) determining a weight or measure, if a charge is |
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made for that determination. |
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(b) Except as provided by Subsection [(b) or] (c) or (d) of |
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this section, a person may not sell a weight or measure unless it |
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bears a valid registration tag issued by the department [inspection
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seal as to its correctness]. |
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(c) [(b)] A weight or measure that has been tested[,
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sealed,] and certified correct by the National Institute of |
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Standards and Technology may be kept or offered for sale or sold |
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without being registered [sealed] under this subchapter. |
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(d) [(c)] A weight or measure that after sale must be |
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assembled before use may be kept or offered for sale or sold without |
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first being registered [sealed] under this subchapter but, unless |
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otherwise approved by the department, must be tested and |
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registered [sealed] under this subchapter before use for weighing |
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or measuring. |
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SECTION 8. Section 13.104, Agriculture Code, is amended to |
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read as follows: |
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Sec. 13.104. STATE INSPECTORS [SEALERS]. (a) The |
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commissioner may appoint employees of the department, or a person |
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licensed by the department under Subchapter H [deputies], as |
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provided for by appropriation, [and inspectors, lecturers, and
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other employees of the department] to serve as state inspectors |
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[sealers] of weights and measures. |
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(b) The jurisdiction of a state inspector [sealer] is |
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coextensive with the limits of the state. A state inspector |
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[sealer] is entitled to inspect and test weights and measures in any |
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district or locality designated by the department. |
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(c) A deputy appointed to serve as state sealer is entitled |
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to reimbursement for actual traveling expenses while traveling on |
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the business of the state. |
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SECTION 9. The heading to Section 13.108, Agriculture Code, |
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is amended to read as follows: |
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Sec. 13.108. POWERS AND DUTIES OF INSPECTORS [SEALERS]. |
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SECTION 10. Section 13.108(a), Agriculture Code, is amended |
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to read as follows: |
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(a) In addition to inspecting and [,] testing[, and sealing] |
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weights and measures, each inspector [sealer] and deputy inspector |
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[sealer] shall: |
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(1) preserve all copies of the standards used in |
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conducting tests and keep the standards in safe and good order when |
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not in use; |
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(2) keep a record of all work performed, including |
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inspections made, and the name and post office address of each |
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party: |
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(A) for whom a measurement, test weight, or |
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inspection is made; |
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(B) whose weight or measure is condemned; or |
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(C) who is prosecuted; and |
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(3) keep a record of all violations of this chapter and |
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report those violations to the department. |
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SECTION 11. Section 13.109, Agriculture Code, is amended to |
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read as follows: |
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Sec. 13.109. RULES GOVERNING INSPECTORS [SEALERS]. The |
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department shall issue instructions and adopt rules governing state |
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inspectors [sealers] as necessary to carry out the purposes of this |
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chapter. |
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SECTION 12. The heading to Section 13.110, Agriculture |
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Code, is amended to read as follows: |
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Sec. 13.110. INSPECTING[,] AND TESTING[, AND SEALING]. |
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SECTION 13. Section 13.110(a), Agriculture Code, is amended |
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to read as follows: |
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(a) In accordance with this subchapter, each inspector |
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[sealer] may inspect and test all weights and measures used in the |
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locality to which the inspector [sealer] is assigned. |
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SECTION 14. Sections 13.111(a) and (b), Agriculture Code, |
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are amended to read as follows: |
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(a) If, in the judgment of the inspector [sealer], a weight |
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or measure found to be incorrect is not capable of being repaired, |
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the inspector [sealer] may condemn, seize, and destroy the weight |
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or measure. |
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(b) If, in the judgment of the inspector [sealer], an |
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incorrect weight or measure is capable of being repaired, the |
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inspector [sealer] shall place on the weight or measure a tag or |
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other mark with the words "Out of Order." The owner or user of the |
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weight or measure may have it repaired within 30 days, but may not |
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use or dispose of it until it is reinspected and approved by an |
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inspector [sealed]. After repair, the owner or user shall notify |
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the inspector [sealer] and the inspector [sealer] shall reinspect |
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the weight or measure. If it is found to be correct, the inspector |
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[sealer] shall remove the out-of-order tag [and seal the weight or
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measure as provided by Section 13.110 of this code]. |
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SECTION 15. Sections 13.113(a), (c), and (e), Agriculture |
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Code, are amended to read as follows: |
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(a) The standards of weights and measures received from the |
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United States and certified by the National Institute of Standards |
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and Technology are the state's standards by which all state and |
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local standards of weights and measures are tried, authenticated, |
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and proved[, and sealed]. |
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(c) In addition to the standards kept by the state, the |
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department shall maintain a complete set of copies of the original |
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standards for use in adjusting local standards or in the |
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performance of other official duties. The department may purchase |
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additional sets of standards as necessary for use by state |
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inspectors [sealers]. |
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(e) The department shall inspect and correct the standards |
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used by a local inspector [sealer] at least once every year [two
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years]. The department shall keep a record of the inspection and |
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character of weights and measures inspected under this subsection. |
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The city shall pay all expenses incurred in inspections under this |
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subsection. |
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SECTION 16. Section 13.116, Agriculture Code, is amended to |
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read as follows: |
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Sec. 13.116. USE OR SALE OF UNREGISTERED [UNSEALED] WEIGHT |
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OR MEASURE. (a) A person commits an offense if the person or the |
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person's servant or agent: |
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(1) offers or exposes for sale, hire, or award or sells |
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an unregistered [unsealed] weight or measure; |
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(2) uses an unregistered [unsealed] weight or measure |
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in: |
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(A) buying or selling a commodity or item; |
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(B) computing a charge for services rendered on |
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the basis of weight or measure; or |
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(C) determining a weight or measure, if a charge |
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is made for that determination; or |
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(3) possesses an unregistered [unsealed] weight or |
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measure. |
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(b) In this section, a weight or measure is unregistered |
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[unsealed] if it has not been registered [sealed] within the past |
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year in accordance with this subchapter. |
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SECTION 17. Section 13.117, Agriculture Code, is amended to |
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read as follows: |
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Sec. 13.117. REFUSING TO PERMIT TEST OF WEIGHT OR MEASURE. A |
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person commits an offense if the person neglects or refuses to |
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exhibit a weight or measure under the person's control or in the |
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person's possession to the department or an inspector [a sealer] |
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for inspection or examination as required by law. |
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SECTION 18. Section 13.118, Agriculture Code, is amended to |
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read as follows: |
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Sec. 13.118. HINDERING INSPECTOR [SEALER]. A person |
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commits an offense if the person hinders or obstructs in any way the |
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department or an inspector [a sealer] in the performance of |
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official duties. |
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SECTION 19. Section 13.119, Agriculture Code, is amended to |
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read as follows: |
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Sec. 13.119. REMOVAL OF REGISTRATION [SEALER'S] TAG. A |
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person commits an offense if the person removes or obliterates a tag |
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or device placed on a weight or measure under this chapter [Section
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13.110 or 13.111 of this code]. |
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SECTION 20. Sections 13.401(a), (b), and (d), Agriculture |
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Code, are amended to read as follows: |
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(a) A person who has a license issued under this subchapter |
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has all of the powers and duties of an inspector [a sealer] under |
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this chapter except for: |
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(1) testing of a package under Section 13.039; |
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(2) peace officer status under Section 13.108(b); and |
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(3) entering premises or conducting a stop under |
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Section 13.108(c). |
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(b) It is a defense to prosecution under Section 13.117 or |
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13.118 that the inspector [sealer] is acting under the authority of |
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a license issued under this subchapter. |
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(d) Unless appointed an inspector [a sealer] under |
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Subchapter C, a person may not perform the functions of an inspector |
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[a sealer] without a license issued under this subchapter. |
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SECTION 21. Subchapter B, Chapter 17, Agriculture Code, is |
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amended by adding Section 17.056 to read as follows: |
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Sec. 17.056. MINIMUM MOTOR FUEL QUALITY STANDARDS. A |
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dealer, distributor, jobber, supplier, or wholesaler may only sell |
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or offer for sale motor fuel that complies with: |
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(1) the minimum standards for water content |
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established by the National Institute of Standards and Technology, |
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as those standards existed on September 1, 2009; and |
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(2) the minimum standards for fuel quality and |
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composition established by the American Society for Testing and |
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Materials, as those standards existed on September 1, 2009. |
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SECTION 22. Section 17.102, Agriculture Code, is amended to |
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read as follows: |
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Sec. 17.102. TESTING; RULES RELATING TO TESTING FREQUENCY. |
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To determine compliance with the standards and enforce rules |
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adopted under Sections 17.051, 17.052, 17.053, 17.055, 17.056, |
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[and] 17.103, and 17.105, the commissioner or an authorized |
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representative of the commissioner may test any motor fuel sold in |
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this state, regardless of the existence of a complaint about the |
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fuel. This section does not prohibit the commissioner from |
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adopting rules relating to the frequency of testing motor fuels. In |
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adopting the rules, the commissioner shall consider: |
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(1) the nature of the violation; |
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(2) the history of past violations; and |
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(3) available funds under Section 17.104(d). |
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SECTION 23. Section 17.104(a), Agriculture Code, is amended |
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to read as follows: |
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(a) The commissioner may adopt rules consistent with this |
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chapter for the regulation of the sale of motor fuels, including |
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motor fuels that contain [containing] ethanol and methanol. |
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SECTION 24. Subchapter C, Chapter 17, Agriculture Code, is |
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amended by adding Section 17.105 to read as follows: |
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Sec. 17.105. TESTING OF MOTOR FUEL QUALITY. The |
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commissioner may conduct testing, at any location where motor fuel |
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is refined, distributed, or sold, to verify that the motor fuel |
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complies with the minimum standards required by Section 17.056. |
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SECTION 25. Subchapter D, Chapter 17, Agriculture Code, is |
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amended by adding Section 17.156 to read as follows: |
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Sec. 17.156. STOP-SALE ORDER. (a) If the department has |
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reason to believe that motor fuel is in violation of this subchapter |
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or a rule adopted under this subchapter, the department may issue |
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and enforce a written order to stop the sale of the motor fuel. The |
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department shall present the order to the dealer, distributor, |
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jobber, supplier, or wholesaler who is in control of the motor fuel |
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at the time the motor fuel is tested. The person who receives the |
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order may not sell the motor fuel until discharged by a court under |
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Subsection (b) or until the department determines that the motor |
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fuel is in compliance with this subchapter and department rules. |
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(b) The person who is in control of motor fuel prohibited |
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from sale by the order is entitled to bring suit against the |
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department in the county where the motor fuel is located for a |
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judgment as to the justification for the order and for discharge of |
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the motor fuel from the order in accordance with the findings of the |
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court. |
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(c) This section does not limit the authority of the |
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department to proceed under another section of this subchapter. |
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SECTION 26. The following provisions of the Agriculture |
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Code are repealed: |
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(1) Section 13.004; |
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(2) Section 13.104(c); and |
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(3) Section 13.110(b). |
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SECTION 27. (a) Not later than January 1, 2010, the |
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Department of Agriculture shall adopt rules, procedures, and forms |
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for the registration of a weight and measure as required by Section |
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13.102, Agriculture Code, as amended by this Act. |
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(b) The department may not enforce Section 13.102, |
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Agriculture Code, as amended by this Act, until the rules, |
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procedures, and forms adopted under Subsection (a) of this section |
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take effect. |
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SECTION 28. This Act takes effect September 1, 2009. |